New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2000-015-056, Claim No. 102294, Motion No. M-61726


Synopsis


Absent litigation involving a grievous forfeiture or loss of a fundamental right a claimant will not be assigned an attorney to serve without fee pursuant to CPLR 1102(a).

Case Information

UID:
2000-015-056
Claimant(s):
MIGUEL MOJICA
Claimant short name:
MOJICA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102294
Motion number(s):
M-61726
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Miguel Mojica
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the claimant for an order pursuant to CPLR § 1102 (a) assigning him an attorney to prosecute his claim without compensation is denied.

This is a claim by an inmate appearing pro se seeking to recover for personal injuries to his finger allegedly resulting from the medical malpractice and negligence of a registered nurse employed at the Oneida Correctional Facility on December 22, 1999. Claimant alleges that he has an income of $14.00 a month and no other property. The portion of the motion seeking a waiver of the filing fee has been determined by a prior order and this decision and order addresses only the request for the assignment of counsel.

The Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.



August 2, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Petition for poor person relief dated March 31, 2000;
  2. Affidavit of Miguel Mojica sworn to March 31, 2000;
  3. Affirmation in opposition of G. Lawrence Dillon dated May 31, 2000.